JAMAIRAH B.

MACABANDING III
ARELLANO

2004 BAR QUESTIONS IN REMEDIAL LAW

(CIVIL PROCEDURE)

1) Judgment; Interlocutory Order; Partial Summary Judgments

After defendant has served and filed his answer to plaintiffs complaint for damages
before the proper RTC, plaintiff served and filed a motion (with supporting affidavits)
for a summary judgment in his favor upon all of his claims. Defendant served and
filed his opposition (with supporting affidavits) to the motion. After due hearing, the
court issued an order
(1) stating that the court has found no genuine issue as to any material fact
and thus concluded that plaintiff is entitled to judgment in his favor as a
matter of law except as to the amount of damages recoverable, and
(2) accordingly ordering that plaintiff shall have judgment summarily against
defendant for such amount as may be found due plaintiff for damages, to be
ascertained by trial on October 7, 2004, at 8:30 o'clock in the morning. May
defendant properly take an appeal from said order? Or, may defendant
properly challenge said order thru a special civil action for certiorari? Reason.
(5%)

SUGGESTED ANSWER:

No, plaintiff may not properly take an appeal from said order because it is an
interlocutory order, not a final and appealable order (Sec. 4 of Rule 35). It does not
dispose of the action or proceeding (Sec. 1 of Rule 39). PARTIAL SUMMARY
JUDGMENTS are interlocutory. There is still something to be done, which is the trial
for the adjudication of damages but the defendant may properly challenge said
order thru a special civil action for certiorari (Sec 1 [c] and last paragraph of Rule
41)

2) Jurisdiction; Lack of Jurisdiction; Proper Action of the Court

Plaintiff filed a complaint for a sum of money against defendant with the MeTC-
Makati, the total amount of the demand, exclusive of interest, damages of whatever
kind, attorney's fees, litigation expenses, and costs, being P1,000,000. In due time,
defendant filed a motion to dismiss the complaint on the ground of the MeTC's lack
of jurisdiction over the subject matter. After due hearing, the MeTC (1) ruled that the
court indeed lacked jurisdiction over the subject matter of the complaint; and (2)
ordered that the case therefore should be forwarded to the proper RTC immediately.
Was the court's ruling concerning jurisdiction correct? Was the court's order to
forward the case proper? Explain briefly. (5%)
SUGGESTED ANSWER:
 Yes. The MeTC did not have jurisdiction over the case because the total
amount of the demand exclusive of interest, damages of whatever kind, attorney's
fees, litigation expenses, and costs, was P1M. Its jurisdictional amount at this time
should not exceed P400.000.00 (Sec. 33 of B.P. Big. 129, as amended by R.A. No.
7691). The court's order to forward the case to the RTC is not proper. It should
merely dismiss the complaint. Under Sec. 3 of Rule 16, the court may dismiss the
action or claim, deny the motion or order the amendment of the pleading but not to
forward the case to another court.

3) Gen. Principles; Questions of Law vs. Questions of Fact

Distinguish Questions of law from Questions of fact.
SUGGESTED ANSWER:

A QUESTION OF LAW is when the doubt or difference arises as to what the law
is on a certain set of facts, while a QUESTION OF FACT is when the doubt or
difference arises as to the truth or falsehood of alleged facts.

4) Pleadings; Amendment of Complaint; To Conform w/ Evidence

During trial, plaintiff was able to present, without objection on the part of defendant
in an ejectment case, evidence showing that plaintiff served on defendant a written
demand to vacate the subject property before the commencement of the suit, a
matter not alleged or otherwise set forth in the pleadings on file. May the
corresponding pleading still be amended to conform to the evidence? Explain. (5%)

SUGGESTED ANSWER:

Yes. The corresponding pleading may still be amended to conform to the

evidence, because the written demand to vacate, made prior to the commencement
of the ejectment suit, was presented by the plaintiff in evidence without objection
on the part of the defendant. Even if the demand to vacate was jurisdictional, still,
the amendment proposed was to conform to the evidence that was already in the
record and not to confer jurisdiction on the court, which is not allowed. Failure to
amend, however, does not affect the result of the trial on these issues. (Sec. 5 of
Rule 10).

ALTERNATIVE ANSWER:

It depends. In forcible entry, the motion may be allowed at the discretion of

the court, the demand having been presented at the trial without objection on the
part of the defendant. In unlawful detainer, however, the demand to vacate is
jurisdictional and since the court did not acquire jurisdiction from the very
beginning, the motion to conform to the evidence cannot be entertained. The
amendment cannot be allowed because it will in effect confer jurisdiction when
there is otherwise no jurisdiction.

5) Pleadings; Answer; Defense; Specific Denial

In his complaint for foreclosure of mortgage to which was duly attached a copy of
the mortgage deed, plaintiff PP alleged inter alia as follows: (1) that defendant DD
duly executed the mortgage deed, copy of which is Annex "A" of the complaint and
made an integral part thereof; and (2) that to prosecute his complaint, plaintiff
contracted a lawyer, CC, for a fee of P50.000. In his answer, defendant alleged, inter
alia, that he had no knowledge of the mortgage deed, and he also denied any
liability for plaintiffs contracting with a lawyer for a fee. Does defendant's answer as
to plaintiffs allegation no. 1 as well as no. 2 sufficiently raise an issue of fact?
Reason briefly. (5%)

SUGGESTED ANSWER:

As to plaintiffs allegation no. 1, defendant does not sufficiently raise an issue

of fact, because he cannot allege lack of knowledge of the mortgage deed since he
should have personal knowledge as to whether he signed it or not and because he
did not deny under oath the genuineness and due execution of the mortgage deed,
which is an actionable document. As to plaintiffs allegation no. 2, defendant did not
properly deny liability as to plaintiffs contracting with a lawyer for a fee. He did not
even deny for lack of knowledge. (Sec. 10 of Rule8).

6) Pleadings; Counterclaim against the Counsel of the Plaintiff

PX filed a suit for damages against DY. In his answer, DY incorporated a

counterclaim for damages against PX and AC, counsel for plaintiff in said suit,
alleging in said counterclaim, inter alia, that AC, as such counsel, maliciously
induced PX to bring the suit against DY despite AC's knowledge of its utter lack of
factual and legal basis. In due time, AC filed a motion to dismiss the counterclaim as
against him on the ground that he is not a proper party to the case, he being merely
plaintiffs counsel. Is the counterclaim of DY compulsory or not? Should AC's motion
to dismiss the counterclaim be granted or not? Reason. (5%)

SUGGESTED ANSWER:

Yes. The counterclaim of DY is compulsory because it is one which arises out

of or is connected with the transaction or occurrence constituting the subject matter
of the opposing party's claim and does not require for its adjudication the presence
of third parties of whom the court cannot acquire jurisdiction.(Sec. 7 of Rule 6).

The motion to dismiss of plaintiffs counsel should not be granted because

bringing in plaintiffs counsel as a defendant in the counterclaim is authorized by
the Rules. Where it is required for the grant of complete relief in the determination
of the counterclaim, the court shall order the defendant's counsel to be brought in
since jurisdiction over him can be obtained. (Sec. 12 of Rule 6; Aurelio v. Court
of Appeals, 196 SCRA 674 [1994]). Here, the counterclaim was against both the
plaintiff and his lawyer who allegedly maliciously induced the plaintiff to file the suit.

ALTERNATIVE ANSWER:
 The counterclaim should be dismissed because it is not a compulsory
counterclaim. When a lawyer files a case for a client, he should not be sued on a
counterclaim in the very same case he has filed as counsel. It should be filed in a
separate and distinct civil action. (Chavez v. Sandiganbayan, 193 SCRA 282
[1991])

7) Remedies; Void Decision; Proper Remedy

After plaintiff in an ordinary civil action before the RTC; ZZ has completed
presentation of his evidence, defendant without prior leave of court moved for
dismissal of plaintiffs complaint for insufficiency of plaintiffs evidence. After due
hearing of the motion and the opposition thereto, the court issued an order, reading
as follows: The Court hereby grants defendant's motion to dismiss and accordingly
orders the dismissal of plaintiffs complaint, with the costs taxed against him. It is so
ordered." Is the order of dismissal valid? May plaintiff properly take an appeal?
Reason. (5%)

SUGGESTED ANSWER:

The order or decision is void because it does not state findings of fact and of
law, as required by Sec. 14, Article VIII of the Constitution and Sec. 1, Rule 36. Being
void, appeal is not available. The proper remedy is certiorari under Rule 65.

ANOTHER ANSWER:

Either certiorari or ordinary appeal may be resorted to on the ground that the
judgment is void. Appeal, in fact, may be the more expedient remedy.

ALTERNATIVE ANSWER:

Yes. The order of dismissal for insufficiency of the plaintiffs evidence is valid
upon defendant's motion to dismiss even without prior leave of court. (Sec. 1 of
Rule 33). Yes, plaintiff may properly take an appeal because the dismissal of the
complaint is a final and appealable order. However, if the order of dismissal is
reversed on appeal, the plaintiff is deemed to have waived his right to present
evidence. (Id.)

8) Summons; Substituted Service

Summons was issued by the MM RTC and actually received on time by defendant
from his wife at their residence. The sheriff earlier that day had delivered the
summons to her at said residence because defendant was not home at the time.
The sheriffs return or proof of service filed with the court in sum states that the
summons, with attached copy of the complaint, was served on defendant at his
residence thru his wife, a person of suitable age and discretion then residing
therein. Defendant moved to dismiss on the ground that the court had no
jurisdiction over his person as there was no valid service of summons on him
because the sheriffs return or proof of service does not show that the sheriff first
made a genuine attempt to serve the summons on defendant personally before
serving it thru his wife. Is the motion to dismiss meritorious? What is the purpose of
summons and by whom may it be served? Explain. (5%)

SUGGESTED ANSWER:

The motion to dismiss is not meritorious because the defendant actually

received the summons on time from his wife. Service on the wife was sufficient.
(Boticano v. Chu, 148 SCRA 541 [1987]). It is the duty of the court to look into
the sufficiency of the service. The sheriffs negligence in not stating in his return
that he first made a genuine effort to serve the summons on the defendant, should
not prejudice the plaintiff. (Mapa v. Court of Appeals, 214 SCRA 417/1992).
The purpose of the summons is to inform the defendant of the complaint filed
against him and to enable the court to acquire jurisdiction over his person. It may
be served by the sheriff or his deputy or any person authorized by the court.

ALTERNATIVE ANSWER:

Yes. The motion to dismiss is meritorious. Substituted service cannot be

effected unless the sheriffs return shows that he made a genuine attempt to effect
personal service on the husband.